Gordon Zee Ming Jean v. Nasir Rehman

DCCJ 1247/2015

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO 1247 OF 2015

--------------------------

--------------------------

--------------------------------------

REASONS FOR DECISION

--------------------------------------

INTRODUCTION

1.There is the defendant’s application under Order 58 to appeal against Registrar Lui’s judgment dated 7 August 2015 and have it set aside.  In the judgment, the plaintiff was allowed to recover possession of the property which has been described in the statement of claim as “3^rd Floor of No 191 Ma Tau Wai Road, Kowloon” (“the Premises”) and the defendant was ordered to pay mesne profits to the plaintiff at the rate of HK$2,200 per month from 1 April 2013 until delivery of vacant possession of the Premises.

2.At the hearing on 19 November 2015, I dismissed the defendant’s appeal and said that I would provide the reasons for my decision in due course.  These are my reasons. 

BACKGROUND

3.The plaintiff was the registered owner of the Premises. By a tenancy agreement dated 30 September 2011 entered into between the plaintiff and the defendant, the plaintiff let the Premises to the defendant with a term of 2 years from 1 April 2011 to 31 March 2013 at a monthly rental of HK$2,200.

4.After the expiry of the tenancy agreement on 31 March 2013, the defendant refused to vacate the Premises and continued to occupy the same without paying any rent or mesne profits.  By a notice dated 29 January 2015 posted at the door of the Premises, the defendant was notified that the tenancy agreement had been expired on 31 March 2013 and the defendant was requested to quit and deliver vacant possession of the Premises on or before 28 February 2015.

5.The statement of claim in this case was filed on 25 March 2015 seeking possession of the Premises and mesne profits at the rate of HK$2,200 per month from 1 April 2013 until possession is delivered up by the defendant.  The defence was filed on 5 May 2015, clearly with the help of someone who can read and write English -- something which the plaintiff claims he cannot -- and with some legal background.  The plaintiff’s inter partes summons for Order 14 application was filed on 7 May 2015 and the hearing date to hear the inter partes summons was set down on 29 May 2015.

6.At the hearing on 29 May 2015, the defendant asked for adjournment of the case on two grounds:-

(1) Although the defence was written in English, the defendant claimed that he did not know English and he needed a Punjabi interpreter for him.  The Court had not arranged such interpreter for him at the time of the hearing as no request had been made prior to that.

(2) The defendant submitted a Legal Aid application memorandum which was a date before the hearing date and the defendant asked for adjournment for 42 days for his legal aid application.

7.On 7 August 2015, the defendant asked for an adjournment again on the following reasons:-

(1) The present application should wait until the defendant has appealed against the refusal of Legal Aid on his legal aid application in the present case.

(2) The defendant needed time to file further document to support his case.

8.The Registrar Lui asked the defendant what were those documents that he needed time to obtain to support his case.  The defendant could not tell what those documents were.  The Registrar Lui refused the defendant’s application and entered judgment against the defendant.

DISSCUSSION

9.In my judgment, the appeal brought by the defendant ought to be dismissed because the grounds of appeal relied on by him were completely devoid of merits.

10.For the 1^st ground of waiting for the legal aid appeal, there was simply no evidence to suggest that the defendant has actually commenced any proceedings at all in appealing against the legal aid application.  Up to time of the hearing, there was no information at all on the situation of the defendant’s alleged legal aid application.  There was no basis at all as to how the legal aid appeal application could stay the present action.

11.Further, the compensation claimed by the defendant at HK$500,000 for the alleged “emotional stress, loss and damage” suffered him due to the plaintiff’s premature commencement of this action is completely baseless.  Save for the bare assertion made in the counterclaim, the defendant has not provided a shed of evidence to demonstrate how he, as a tenant who had failed to pay rent for more than 2 years after the expiry of the tenancy agreement, could possibly suffer any loss and damage due to the fact that the landlord had legitimately commenced legal action against him.  In my judgment, the counterclaim raised by the defendant is so farfetched that it cannot possibly create any triable issue in the present case.

12.On the 2^nd ground of insufficient time to file an affirmation to oppose the plaintiff’s application.  I note that the interlocutory application had been adjourned once from 29 May 2015 to 7 August 2015.  Registrar Lui had already given an extra 9 weeks for the defendant to file an affirmation to oppose the plaintiff’s application.  Registrar Lui on 29 May 2015 also reminded the defendant to file his evidence at the following hearing.  However, on 7 August 2015, the defendant still has not filed any affirmation to substantiate his grounds for opposition.  In my view, the request for further time to obtain supporting documents has been rightly rejected by Registrar Lui when the defendant simply could not tell the Court what were the further documents he was thinking of filing.  Even up to the hearing on 19 November 2015, the defendant still had failed to file any affirmation to show the merit of his case in opposing the Order 14 application.

13.In my judgment, the defendant obviously has tried to make up all sorts of lame excuses in order to adjourn or to delay the whole proceedings.  I have no doubt that the present appeal itself is one of those pathetic tactics employed by the defendant or his “friend” in delaying the plaintiff in obtaining possession of the Premises.  During the hearing, the defendant candidly admitted that he wanted to receive some compensation from the plaintiff before he is willing to vacate the Premises as he had seen many other tenants did the same in similar situations.  It is plain to me that those were the real reasons behind this appeal.  I have no doubt that a fellow countryman of his who works for a law firm has been teaching him of how to do this throughout these proceedings.       

14.The defendant is not a Hong Kong citizen and is staying here as a “refugee” by virtue of the recognizance letter issued by the Immigration Department.  His rent was paid by the ISS, the agent representing the United Nation’s Refugee Office here.  Against such background, it is most unlikely that the plaintiff will be able to recover the mesne profits from the defendant as ordered by Registrar Lui under the judgment.  The only remedy that the plaintiff has is to obtain the vacant possession of the Premises as soon as possible.

CONCLUSION

15.For the reasons stated above, I came to the view that the defendant’s appeal was completely groundless and without any merits at all.  I had therefore dismissed the defendant’s appeal on the day of the hearing and ordered him to deliver up vacant possession of the Premises and to pay costs to the plaintiff on an indemnity basis, such costs to be taxed of not agreed, with certificate for counsel.

Mr Stephen Fong, instructed by Damien Shea & Co, for the plaintiff (respondent)

The defendant appeared in person (appellant)